Monday, October 12, 2020

Part I

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All Eyes on Washington, DC as Confirmation Hearings Begin for Supreme Court Nominee Amy Coney Barrett — What to Watch For as the Hearings Unfold

The big show is going to take place today in Washington, DC, and that throughout the week. The judicial confirmation hearings for the appointment by President Trump of Judge Amy Coney Barrett to the Supreme Court of the United States. The hearings are going to begin in the United States Senate at 9:00 this morning, and we need to be paying very close attention to what’s going to be taking place there.

For three reasons: Number one, the future of the court is at stake. And we as Christians understand just how big an issue that is. Number two, these confirmation hearings often reveal a very great deal about where we are as a country, as reflected in the composition of the United States Senate. And third, we need to be paying close attention because this is a political battle and it is not over.

It is not merely a matter of math. These confirmation hearings remind us that we are, yes, in a political context, but we are also looking at an intensely irreducibly human equation. It’s going to be interesting to see what happens. But we already know the opening statement that Judge Barrett is going to make after she’s introduced, and the committee begins its deliberations this morning. She’s going to say, as she makes her opening statement, that she is of course, honored and humbled to appear before the committee. She thanks the president for the nomination. She thanks her husband and her family and recognizes them.

But then after making statements about gratitude and her sense of the historical moment, she then goes on to speak of her judicial philosophy. She speaks of her background. “I also clerked for Justice Scalia and like many law students, I felt like I knew the justice before I ever met him because I had read so many of his colorful, accessible opinions. More than the style of his writing though,” she says, “it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward. A judge must apply the law as written, not as the judge wishes it were.”

She then goes on to say summarizing the late Justice Scalia, “Sometimes that approach meant reaching results that he did not like, but as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men.”

Now, her statement was released just hours before she will deliver it in the Senate hearings today. But it tells us something very important just at this point. It tells us that Judge Barrett is signaling what we already know, but this is very interesting that she would put it so explicitly. She intends to represent the jurisprudence that was pioneered by the late Justice Antonin Scalia on the nation’s highest court.

Now wait just a minute. Wouldn’t that be true of, say, Justice Neil Gorsuch and Justice Brett Kavanaugh also appointed after death of Justice Scalia? Well, yes and no. Even as you’re looking at strict constructionism and a conservative reading of the constitution, what might be called textualism or might also be called originalism, the reality is that there are different variants of all of these approaches, and Judge Barrett is going to indicate roughly without condition that she stands for the approach of textualism and originalism of the late Justice Antonin Scalia.

What does that tell us? Well, it tells us something extremely important. It tells us that she is defining her jurisprudence in a way that goes far beyond what other nominees have done in recent decades. She’s telling us, “If you want to know how I will function on the United States Supreme Court, then look at the long tenure of Antonin Scalia on the court. I will apply the very same jurisprudence, the very same understanding of how the US constitution is to be read.”

Now, let’s be fair here. Does that mean that if Justice Scalia were alive and on the court and a Justice Barrett were on the court, that they would always come to the same conclusion? Well, overwhelmingly, it would be likely to be so. But because again, we’re dealing with a human condition, we’re dealing with the fact that every single one of the members of the court, every single one of the members of the Senate Judiciary Committee is human. You simply can’t make human beings into computers.

But here’s where we also have to recognize that when you have Judge Barrett making a statement like this, so clear, so straightforward, so early in the process, it’s going to make conservatives say, this is exactly who we want to be on the United States Supreme Court, and it’s going to make liberals say, whether they say it out loud and basically they already are, this is exactly who we do not want on the United States Supreme Court. But in a way that has not been true for decades, it is likely to put all the issues of how the constitution is to be read right out front and center from the beginning.

Now, of course, we’re in the context of the 2020 presidential election that just underlines how politically urgent this is. And it also reminds us of the fact that elections have consequences, and the nomination of judges is one of the primary consequences of electing a president. But we’re also looking at the fact that the future of the United States Senate is on the line in this election, just a matter of weeks away. And even before we turn to exactly what that might look like, let’s take a closer look at some of the other statements that Judge Barrett will make in her opening address later this morning.

She’s going to say that when you consider how the Supreme Court and a justice or a judge is to act is most importantly, she said that the courts understand their proper role. In an extremely important section of her remarks, she will say this, “Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life.” That’s an extremely important statement.

Now, on the one hand, you must say, why would that ever be controversial? Who would believe that the courts should be designed to solve every problem or right every wrong in our public life? Well, there are two problems here. Number one, the political left. The political left turned the courts into exactly that, the engines for social policy, social engineering, well beyond the constitution. Well beyond the law for that matter. But there is a second problem here and that’s not just the ideologues of the political left.

It is also just your everyday American who tends to think if something is wrong, somebody needs to fix this. And it probably would be a court or a judge or a jury somewhere. Now, we have judges, we have courts, we have juries. We have a Supreme Court, an entire federal judiciary in order to allow our society to achieve the greatest justice possible. Yes, to make us a more just society. But that doesn’t mean that the courts are where we should go with every question or even that courts are competent to deal with every question.

Arguably, one of the main problems when it comes to many recent decisions by the courts and in particular, the federal courts is that the courts should never have taken these questions in the first place. Speaking about how she decides cases even now, she says this, “When I write an opinion resolving a case, I read every word from the perspective of the losing party. I asked myself, how would I view the decision if one of my children was the party I was ruling against. Even though I would not like the results,” she writes, “would I understand that the decision was fairly reasoned and grounded in the law? That,” she says, “is the standard I set for myself in every case and it is the standard I will follow as long as I’m a judge on any court.”

It’s also interesting that in her opening statements, which are fairly brief as they are required to be, she also points out that she would be one of the few women ever appointed to the United States Supreme Court. She underlines the fact she was nine years old when Sandra Day O’Connor became the first woman justice of the Supreme Court. But she points to something else that we’ve remarked upon, it’s important.

If she is indeed confirmed, she would be the first justice to join the court from the Seventh Circuit Court of Appeals in 45 years. That’s a very long time. What does that tell us? She would be one of the first judges from the heartland, so to speak in a very, very long time. She goes on to say also, “And I would be the only sitting justice who didn’t attend law school at Harvard or Yale.” Again, extremely important.

One of the reasons why we have such difficulty with the Supreme Court is that the court is no longer by any estimation identified with the American people as a whole. You’re looking at only two law schools that are produced virtually every single justice. But she concludes by saying, “And if I am fortunate enough to be confirmed, I pledge to faithfully and impartially discharge my duties to the American people as an associate justice of the Supreme Court.” And then the battle will be joined.

It’s going to be on pause only for so long as the opening formalities go on, and then as Judge Barrett makes her opening comment, but after that, it’s going to be a free for all. But it’s also going to be an intensely political process we need to take a closer look at the politics. What is it that we will be seeing in those hearings? Well, first of all, you’re going to have one of President Trump’s appointees before the nation’s highest court with just days left before the election. So President Trump who will not be in the room will be in the room. The big issue it has to do with the presidential election and what that means for the future of the United States and the Supreme court.

Part II

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The Politics Will Be Front and Center in Today’s Confirmation Hearings: America’s Senior Political Class in the Spotlight

But you’re also going to have all those members of the United States Senate Committee on the Judiciary, Democrats and Republicans, and the future of the Senate is at stake. And not only that, some of them have an electoral challenge right now.

And that will include the Republican chairman of the Judiciary Committee. Senator Lindsey, Graham of South Carolina. He is in an intense fight for his effort to be reelected to a fourth term in the United States Senate unexpectedly tight and his role as the Senate judiciary chairman in pushing through, President Trump’s Supreme Court nominations is part of the reason. Jaime Harrison running against him by the way, as of last night had raised more money, most of it from far outside South Carolina in order to try to unseat Lindsey Graham, than even Beto O’Rourke had raised in his unexpectedly close challenge as a Democrat against the incumbent Republican Senator, Ted Cruz in 2018.

We’re talking about unbelievable amounts, millions of dollars from outside South Carolina that tells you just how intense this political context is. But there will be others who will be in the room and even more important than the chairman of the committee is going to be a Democratic member of the committee, California Democratic Senator Kamala Harris, who after all, is the 2020 democratic vice presidential nominee.

Now, all of this is of course going to be intensely interesting, but the cameras are going to be going repeatedly to Senator Harris because she’s going to be a big part of the story. It might be that she is the biggest part of the story at certain moments. And she is going to be in the position in all likelihood of running a great deal of the opposition against Judge Barrett. So Lindsey Graham is going to be very aware that the entire hearing process could have a great deal to do with whether or not on November 3rd, he’s reelected as a United States senator from South Carolina.

And all of the senators in the room, Democrats and Republicans are aware that November 3rd could decide the future leadership in terms of the majority party for the United States Senate. And that’s the big issue when it comes to the future of the United States Senate. And Senator Harris is going to understand that her role in that hearing could have an immediate impact on the 2020 presidential race.

There has never been a senate confirmation hearing for a Supreme Court justice in anything like this political context, never. Both sides know that the future of the Supreme Court is on the line. Conservatives are looking at the opportunity to actually accomplish one of the central goals of the conservative movement, going back a matter of a half century and more. But the other side understands the very same stakes.

But there is another United States Senator in that room who might be most important for the role she doesn’t play largely by intervention of members of her own party, the Democratic caucus. We’re talking about the ranking member, the ranking Democratic member of the senate judiciary committee, Senator Dianne Feinstein, also of California. She is the senior United States senator from California, and she is senior in every way conceivable. She’s currently 87 years old. And it’s really interesting. You should note that this criticism, this movement is coming not from the right, it is coming from the left.

Liberal forces do not trust her to be able to lead the opposition to a judge, Amy Coney Barrett. They want someone else to run lead. Now, again, this is very interesting. The New York Times has run two major articles about the fact that Senator Feinstein is believed to be failing. She was reelected to a very unusual term in the 2018 election. She was elected to a term that will not conclude until she is in her mid 90s.

Ben Smith writing the media equation column for the New York Times offered a headline article, “How to Cover a Politician In Decline: Blunt Truths.” We are looking at an unusually old political class in the United States. There have been elderly politicians before. Strom Thurmond served in the United States Senate beyond age 100. But in those final years, not very well.

But as you’re looking at the leadership right now, consider the fact we have two presidential candidates, President Trump is 74, the Democratic nominee, former vice-president Joe Biden is 77. He’s about to turn 78. The speaker of the House of Representatives, Nancy Pelosi is 80. The Senate President Pro Tempore, Charles Grassley is 87. He is also chairman of the Senate Finance Committee. Both of the Democratic primary deputies to the speaker of the house are over 80. And as the article states, “This concentration of power in the hands of the old is an American phenomenon.” Actually it is.

As you’re looking for example, throughout the world, you can look either at Asia or you can look at Europe, most of the leaders are considerably younger than the American political class. And furthermore, looking at most moments in American history, the political class has been considerably younger. There is no really convincing explanation to why America’s political class is so old, except for the fact that many of these people are winning the battle of political longevity.

Joe Biden first ran for the office of president of the United States, or at least for the democratic nomination in the 1980s. You could do the math about the percentage of the American electorate that wasn’t even alive then.

Nicholas Fandos writing in yesterday’s edition of the New York times about Senator Feinstein says this, “Her absence reflects the extent to which Ms. Feinstein, a trailblazing Senate imminence who has battled the CIA and gun-rights activists has become a diminished and increasingly marginalized figure in recent years, and it helps explain the private worry among many Democrats that the woman leading them into a nationally televised judicial knife fight with Republicans, one whose outcome could affect the election and tip the ideological balance of the Supreme Court may not be up to the task.”

Now, all of that is simply to say that we’re watching this incredible human drama as these televised hearings continue. So watch what role in this entire process Senator Feinstein does and does not have. One indication of how she’s been sidelined in this is how the senate minority leader, Chuck Schumer has taken over making the public arguments. But she is the ranking member of the committee. There is no way, she will not have a role in this process. So we’re going to find out what that role is in the hours and days to come.

Finally, on this issue, there will be a lot to talk about this week and the big question is when will the senate take up a vote over the weekend, speaking on Hugh Hewitt’s radio program, Senate Majority Leader Mitch McConnell of Kentucky, also, by the way, running for reelection, but not in a race expected to be all that tight. He said, “We will be voting on the nominee very soon.” He said, “I haven’t picked an exact point to bring the nomination up, but it’s front and center for the American people.” Sources close to the Senate Majority Leader have indicated that the vote will come before the end of the month before the presidential election on November 3rd.

Now on this issue, I just want to tell you right now that today we are releasing a new edition of Thinking in Public. My conversation with people who are shaping the culture, and this one is with constitutional scholar, Ilya Shapiro, who had just the best timing in the world to release the very best book ever on the senate judicial confirmation, especially Supreme Court hearing process.

His new book is entitled Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. The book is absolutely fascinating, thoroughly informative. I think you’ll find that conversation to be so as well. Again, we release it this morning. It’s going to be entitled, “The Battle for the Supreme Court: A Conversation with Constitutional Scholar Ilya Shapiro.” You’ll find it at albertmohler.com.

Part III

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Challenges to Religious Freedom in the Midst of the Pandemic: Churches and Other Religious Groups Face Discrimination From Overreaching Governments

Next, we’re going to shift to another issue which also deals with the constitution and American Liberty and even issues more fundamental than that. We’re going to talk about the challenges to religious freedom and the movement to open churches and protect religious freedom in the midst of the COVID-19 pandemic.

Now from the beginning, I’ve made a very consistent argument. It’s the argument I believe that conservatives should hold to and Christians should respect. It is the argument that in the context of a pandemic like COVID-19, government officials have the right, if not the responsibility to hand down temporary reasonable, generally applicable restrictions on gatherings and business in the larger society.

But we’re clearly looking at a context right now in which at least some, if not many political authorities, they are now moving with open hostility towards religious groups, religious assemblies, and they are acting in ways that are patently unconstitutional.

Just to give some examples. We saw the fact that the governor of Nevada is allowing assemblies in Caesars Palace and casinos, he’s not allowing in houses of worship. We’ve seen California Governor Gavin Newsom hand down restrictions along with other California authorities that clearly single out religious bodies for discrimination.

We have seen even in the last couple of days, Mayor Bill de Blasio of New York City take stands along with New York’s Democratic governor, Andrew Cuomo that are unusually restrictive of Orthodox Jewish groups and appear to be targeted. Now, there is an outbreak of COVID-19 in some of these groups, but nonetheless, the constitution is not there for nullified. And when it comes to Governor Bill de Blasio, you’re looking at an open hostility.

The Wall Street Journal pointed to this with a headline editorial, “A Jewish Revolt Against Lockdowns.” And as they begin, Haredim, as ultra-Orthodox Jews are called, translates to those who tremble. But as New York’s leaders are learning, the Haredim tremble before God, not to politicians. Now, when it comes to Mayor Bill de Blasio, the editorial is very clear. “In April, Mr. De Blasio raged about a large outdoor funeral for an Orthodox rabbi threatening what he called the Jewish community. But in June, he attended and even larger Black Lives Matter protests. Only a few days later, city officials evicted Haredi, that is Orthodox Jewish children from a park for violating the same rule against gatherings. Is it any wonder,” the editorial board asks, “some residents suspect new rules are based more on politics than science?”

Now the editors are clear. They go on to say mass gatherings are a bad idea. But abandoning the constitution is an even worse idea. And what we’re looking at at this point is an open hostility on the part of many political leaders in the United States. And yes, they are overwhelmingly Democratic. It’s just a matter of fact, they appear to be using the COVID-19 pandemic in a way that is openly adversarial to, and is compromising the religious liberty of Christians.

Now, there are some very interesting developments on this. For example, in Washington DC, a federal judge late on Friday, granted a preliminary injunction to allow a Baptist congregation there. The Capitol Hill Baptist Church right there in the heart of Washington DC, right there on Capitol Hill to gather and that was a relief made necessary by the adversarial position and the unconstitutional policy of DC Mayor Muriel Bowser.

She was not even allowing this church to follow the generally applicable principles related to social distancing and the wearing of mask, et cetera, meeting outdoors. The church made a theological argument. This is just extremely important. Capitol Hill Baptist Church and its pastor Dr. Mark Dever made a very clear theological argument that by the convictions of their congregation, they must meet together or not at all. But they were willing outdoors. There were willing to meet with a social distancing. They’re willing to meet with the requirement of mask, but they wanted to meet on the same basis as other gatherings had taken place. And Mayor Bowser was enthusiastic about the protest that followed none of these rules, outdoors on the street of Washington DC. And thus it is a form of targeted discrimination.

Now you have a federal court that is recognized that with this preliminary injunction, and I also want to point out that the United States Justice Department entered the case on the side of the church and religious liberty. Yes, it matters.

Writing an editorial in Saturday’s edition of the New York Times, Douglas Laycock professor of law at the University of Virginia, probably the nation’s most published and most experienced scholar when it comes to religious liberty said that, “As you’re looking to New York, for example, and the restrictions upon Orthodox Judaism there, there could be some that are sustained constitutionally, but not when they uniquely target any kind of religious assembly, at the expense of any other kind of gathering.”

Professor Laycock writes, “Under the Supreme Court’s interpretation, the right to free exercise of religion is a special form of protection against discrimination. Religious exercise can be regulated only if it falls under generally applicable rules. If a restriction has secular exceptions, it must also have religious exceptions.” Extremely clarifying statements from Professor Laycock.

Summarizing what’s going on in New York City, especially in the confrontation between political authorities and Orthodox Judaism, Laycock writes, “So Governor Cuomo has wide discretion, but he does need to make sure that any rules are truly non-discriminatory.” He then says, “And it’s unclear whether New York’s new rules are.”

As Professor Laycock concludes his article, “Put briefly, non-discriminatory rules to protect human life can be applied to the exercise of religion, but the rules must really be non-discriminatory.” All this again, points to the importance of the courts, all of this points to the importance of what’s taking place in Washington today, this week, the Supreme court, these hearings. All this points to the fact that even though Americans might be tempted to think these are issues at some far distance in our constitutional history, all of these issues today, help us to remember that we’re talking about our rights, our ability as churches to be faithful, our responsibility as Christians to be active, our ability to know and to treasure for our children, their religious liberty, we have known throughout our own lifetimes.

All that is now on the line. But also speaking of Professor Laycock whose article was in Saturday’s edition of the New York Times, remember that I also released just in recent days, a Thinking in Public conversation with him. You can find that also at albermohler.com. In this case, the program is entitled, “The Future of Religious Liberty in America: A Conversation with Constitutional Scholar Douglas Laycock.” Both of those conversations are just as relevant as they can be as the hearings start in Washington, even this morning.